Analysis:
I. Cases on Criminal Offenses of Infringing Intellectual Property Rights
1. Case of Counterfeiting of Registered Trademarks by Huang Weijin and Others
Public Prosecution: People's Procuratorate of Mianzhu Municipality, Sichuan Province
Defendants: Huang Weijin and Chang Rongfang, Zhang Huijian, Chang Zhujia, Qiu Lunfu
Chang Chunrong, Wen Yong
Case: Counterfeiting of Registered Trademarks
First Instance No. (2003) Sichuan Mianzhu Criminal No. 66
On May 26th, 2003, the People's Procuratorate of Mianzhu Municipality, Sichuan Province, with the indictment of Bamboo Procuratorate Criminal Complaint No. 64, charged that the defendants, Huang Weijin, Chang Rongfang, Zhang Huijian, Chang Zhujia, Qiu Lunfu, Chang Chunrong, and Wen Yong were charged with the crime of counterfeiting registered trademarks, and filed an indictment with the Mianzhu Municipal People's Court of Sichuan Province.
The People's Court of Mianzhu City, Sichuan Province, found that: Defendant Huang Weijin and Defendant Chang Rongfang orally agreed that Huang Weijin would provide the original wine, and Chang Rongfang would organize the packaging materials and trademarks to *** with the production of counterfeit wine. Afterwards, Chang Rongfang hired defendant Wen Yong to produce "Mianzhu Daqu", "Jiangkou Alcohol" and "Jianzhuang" from the Xinghong Liquor Wholesale Department of Huang Weijin, which was opened in Huafeng Foodstuffs City of Chengdu, Luzhou" Laojiao Erqu and other wines transported to Chang Rongfang leased in Chengdu City, Shuangliu County, Huayang Town, rented rooms, by the defendant Chang Rongfang, Zhang will build the organization of the "Jiannanchun", "Quanxing", "Wuxing", "Wuxing", "Wuxing", "Wuxing", "Wuxing", "Wuxing", "Wuxing" and so on. ", "Wuliangye", "Luzhou" trademarks and packaging, and employing defendants Chang Zhujia, Qiu Lunfu, Chang Chunrong cleaning bottles and reloading of wine, *** counting the pasting of "JIANNANCHUN The defendants also hired Chang Zhujia, Qiu Lunfu and Chang Chunrong to clean bottles and flip bottles of wine, **** counting 648 copies of the trademark "JIANNANCHUN", 300 copies of the trademark "QUANXING", 88 copies of the trademark "LUZHOU" and 96 copies of the trademark "WUOLIANYI". In addition to the "Wuliangye", by the defendant Chang Rongfang hired the defendant Wen Yong will be transported to the defendant Huang Weijin opened in Chengdu City, southwest of the food city of Xingda Liquor Wholesale Department to be sold.
The People's Court of Mianzhu City, Sichuan Province, held that the defendants, Huang Weijin, Chang Rongfang and Zhang Huijian, without the permission of the owners of the registered trademarks, illegally used the trademarks "JIANNANCHUN", "WULIANYIYUE", "QUANXING ", "Wuliangye", "Quanxing" and "Luzhou" Laojiao Special Qu trademarks and packaging, the circumstances are serious, and their behavior has constituted the crime of counterfeiting registered trademarks. Defendants Wen Yong, Chang Zhujia, Chang Chunrong and Qiu Lunfu knew that the said Defendants had committed the act of counterfeiting registered trademarks and provided them with transportation and other assistance, and their acts should be punished as *** offenders of the crime of counterfeiting registered trademarks. Defendants Huang Weijin, Chang Rongfang and Zhang Huijian played a major role in the crime and were the principal offenders; Defendants Wen Yong, Chang Zhujia and Qiu Lunfu played a minor role and were accomplices, and were subject to mitigated punishment according to the law; Defendant Chang Chunrong played a minor role and was an accessory, and his participation in the counterfeiting of a registered trademark was short and of a minor nature, so he was exempted from punishment according to the law. The defendant Chang Zhujia committed another crime within 5 years after his release from prison, and is a recidivist, and should be punished severely.
On August 20, 2003, the People's Court of Mianzhu City, Sichuan Province, in accordance with Article 213, Paragraph 1 of Article 25, Paragraph 1 of Article 26, Paragraph 4 of Article 26, Paragraph 1 of Article 27, Paragraph 2 of Article 27, Paragraph 2 of Article 64 and Article 65 of the Criminal Law of the People's Republic of China, sentenced the defendant, Huang Weijin, to a fixed-term imprisonment of 3 years and 6 months, and imposed a fine of 10,000 Yuan; the defendant, Chang Rongfang The defendant Chang Rongfang was sentenced to imprisonment of 3 years and 6 months and a fine of 10,000 yuan; the defendant Zhang Huijian was sentenced to imprisonment of 3 years and 6 months and a fine of 10,000 yuan; the defendant Chang Zhujia was sentenced to imprisonment of 1 year and 6 months and a fine of 2,000 yuan; the defendant Wen Yong was sentenced to imprisonment of 1 year and a fine of 2,000 yuan; the defendant Qiu Lunfu was sentenced to imprisonment of 1 year and a fine of 2,000 yuan; and the defendant Chang Chunrong was exempted from criminal punishment.
After the verdict of the first trial, Huang Weijin and other seven defendants did not appeal, the prosecutor did not protest, the verdict has legal effect.
2. The Case of Ying Hongxia and Others Selling Counterfeit Registered Trademarks
Public Prosecution: People's Procuratorate of Xihu District, Hangzhou City, Zhejiang Province
Defendants: Ying Hongxia, Gu Linlin, and Feng Shengwei
Case: Selling Counterfeit Registered Trademarks
Case No. of the First Instance: (2004) No. 336 of Hangzhou Xizhixi Criminal Initial Word
On July 5, 2004, Zhejiang Province, the defendants were convicted of selling counterfeit registered trademarks. On July 5, 2004, the People's Procuratorate of Xihu District, Hangzhou City, Zhejiang Province, filed an indictment with the People's Court of Xihu District, Hangzhou City, Zhejiang Province, with Hangxi Procuratorate Criminal Complaint No. 285, charging the defendants, Ying Hongxia, Gu Linlin, and Feng Shengwei, with committing the crime of selling goods with counterfeit registered trademarks.
The People's Court of Xihu District, Hangzhou City, Zhejiang Province, found that: the defendant Feng Shengwei, who was a staff member of the Hangzhou office of Guangzhou Dasheng Integrated Marketing Communication Organization, during the period from early January 2004 to February 23 of the same year, with the purpose of making illegal profits, in the knowledge that the Guangzhou "Chen Dawei", "Ni Zhuang" in Guangzhou, knowing that the shampoos provided to them by them were counterfeits of the registered trademarks of P&G (China), such as Piao Rou, Hai Fei Si, Pantene, etc., they sold on seven successive occasions, with a value of about RMB 1.5 million, the counterfeit shampoos of the above mentioned registered trademarks produced by P&G (China), to Ying Hongxia and Gu Linlin, who were the former staff members of the external office of Guangzhou Procter & Gamble in Hangzhou. Registered Trademark Shampoo, and by way of commission of RMB 10-15 per case, made an illegal profit of more than RMB 70,000***. During the same period, Defendants Ying Hongxia and Gu Linlin, for the purpose of making illegal profits, knew that the aforesaid shampoos were counterfeit products and sold them to Huang Mou, a distributor of daily chemical products, on seven successive occasions***, from which Defendants Ying Hongxia and Gu Linlin illegally gained more than RMB 150,000 yuan. After the crime, the defendant Feng Shengwei surrendered to the police.
The People's Court of Xihu District, Hangzhou City, held that the defendants, Feng Shengwei, Ying Hongxia and Gu Linlin, knew that the goods were counterfeits of registered trademarks and sold them, and the amount of sales was huge, and their behaviors constituted the crime of selling counterfeits of registered trademarks. Defendant Feng Shengwei voluntarily surrendered to the police and truthfully confessed his crime, which should be regarded as self-surrender, and could be mitigated according to the law.
On August 3, 2004, the People's Court of Xihu District, Hangzhou, in accordance with Article 214, Article 67 (1), Article 25 (1), Article 64, Article 72, Article 73 (2) and (3) of the Criminal Law of the People's Republic of China, sentenced Defendant Ying Hongxia to 3 years' fixed-term imprisonment with 5 years' probation, and a fine of 50,000 yuan; and Defendant Gu Linlin to 3 years' fixed-term imprisonment with 5 years' probation, and a fine of 50,000 yuan; and Defendant Gu Linlin to 5 years' probation, and a fine of 5 years. The defendant Ying Hongxia was sentenced to 3 years of imprisonment, 5 years of probation, and a fine of RMB 50,000 yuan; the defendant Feng Shengwei was sentenced to 3 years of imprisonment, 4 years of probation, and a fine of RMB 50,000 yuan.
After the verdict of the first trial, the defendants did not appeal, the prosecution did not protest, the verdict has been legally effective.
3. Wang Hongxing and Zhao Kun's Copyright Infringement Case
Public Prosecution: Beijing Municipal Haidian District People's Procuratorate
Defendants: Wang Hongxing and Zhao Kun
Case: Copyright Infringement Crime
First Instance Case No. (2003) Beijing Haidian District People's Procuratorate Criminal No. 2434
November 3, 2003, the Beijing Municipal People's Procuratorate sentenced the defendants to 4 years' imprisonment. The Haidian District People's Procuratorate filed an indictment with the Beijing Municipal Haidian District People's Court with (2003) Beijing Haidian Procuratorate Criminal Prosecution No. 621, charging the defendants Wang Hongxing and Zhao Kun with the crime of infringing on copyright.
The Beijing Haidian District People's Court found that: the defendant Wang Hongxing, Zhao Kun, the original department of Beijing Leishi Century Digital Technology Co. The source code of the system software, want to continue to engage in the system software development and sales activities. 2002 March to 2003 January, the two Defendants for the purpose of profit, will be "Leishi KTV broadband service system" software slightly modified after copying the installation disk, successively to the Xi'an Yunzhi Electronic Science and Technology Development Company Limited, Hangzhou new time and space digital technology Co. Ltd. and other seven companies, and the illegal income *** amounted to RMB 119,295,000 yuan.
The Beijing Haidian District People's Court held that the defendants, Wang Hongxing and Zhao Kun, had committed the crime of copyright infringement by reproducing and distributing other people's computer software without the permission of the copyright holder for the purpose of making profits and with a relatively large amount of illegal income. Defendant Wang Hongxing, Zhao Kun are actively involved in and profit from, but Zhao Kun in the crime played a role slightly smaller than Wang Hongxing.
On February 27, 2004, the Beijing Haidian District People's Court sentenced Wang Hongxing to one year and six months of imprisonment and a fine of 5,000 yuan, and Zhao Kun to one year of imprisonment and a fine of 3,000 yuan, in accordance with article 217 (1), article 25 (1), article 53, and article 64 of the Criminal Law of the People's Republic of China.
After the first trial, Wang Hongxing, Zhao Kun two defendants did not appeal, the prosecution did not protest, the verdict has been legally binding.
Second, civil cases involving intellectual property rights
1, (U.S.) Educational Testing Service v. Beijing Haidian District Private New Oriental School dispute over infringement of copyright and the exclusive right to use registered trademarks Appellant (defendant in the first instance): Beijing Haidian District Private New Oriental School
Appellee (plaintiff in the first instance): (U.S.) Educational Testing Service ( Educational Testing Service (USA)
The appellant, Beijing Haidian District Private New Oriental School (hereinafter referred to as New Oriental School), appealed to the Beijing Higher People's Court against the civil judgment No. 35 of the Beijing No. 1 Intermediate People's Court (2001) for the infringement of copyrights and the exclusive right to use trademarks.
The first instance court, the Beijing First Intermediate People's Court, found that the Educational Testing Service (hereinafter referred to as ETS), as the host and developer of the TOEFL test, independently designed and created the TOEFL test questions, and registered the copyright of the 53 sets of TOEFL test questions in the United States. In August 1997, ETS entered into an agreement with New Oriental School, which is mainly engaged in foreign language teaching services, to license New Oriental School to reproduce the sound recordings and written works listed in the agreement (***20 sets of test questions) on a non-exclusive basis for internal use and not for sale to the outside world, and the agreement was valid for one year. However, New Oriental School sold the TOEFL test questions in the form of publications to unspecified persons in its school and on the Internet, and did not sign a new agreement after the expiration of the license agreement. In addition, ETS has approved the registration of the trademark "TOEFL" in China, with the authorized scope of use being cassette tapes, testing services, and publications. In January 2001, ETS filed a lawsuit with the Beijing No.1 Intermediate People's Court against New Oriental School for infringement of the copyright and exclusive right to use the registered trademark, and the allegedly infringing materials were labeled "TOEFL" in prominent characters on their covers. In January 2001, ETS filed a lawsuit against New Oriental School in the Beijing No.1 Intermediate People's Court for infringement of copyright and exclusive use of registered trademarks.
The Court of First Instance held that the TOEFL test questions were developed and designed by ETS, and that each question required many people to go through many steps and to put in creative labor in order to complete it, which was original and belonged to the works in the sense of China's copyright law, and the whole set of questions compiled from it should be protected. New Oriental School has violated the copyright of ETS by reproducing and selling TOEFL test questions for the purpose of commercial operation without the permission of ETS, and should bear the corresponding legal responsibility. New Oriental School marked the word "TOEFL" on the cover of its publication of TOEFL test questions in a conspicuous font, and the category of goods was the same as the category of goods registered by ETS, which infringed the exclusive right to use ETS's registered trademarks. It was decided that New Oriental School should stop infringing the copyright and the exclusive right to use the registered trademark, compensate for the loss, eliminate the influence and apologize.
The Beijing Higher People's Court held that the first instance judgment that New Oriental School had infringed ETS's copyright was correct and should be upheld, but that the infringement of the exclusive right to use ETS's registered trademarks and the amount of compensation were improperly determined and handled, and should be corrected as appropriate. Accordingly, on December 27, 2004, according to the judgment, maintain the first instance judgment on copyright, the first instance judgment on the exclusive right to registered trademarks is withdrawn.
2. Bonerie Cevenole S.A.R.L.C. v. Shanghai Mei Steam Garment Co. . A. R. L.)
Defendant of First Instance: Montgomery May Steam (Hong Kong) Garment Company Limited (hereinafter referred to as Hong Kong May Steam)
Defendant of First Instance: Changshu Hoteba Clothing Company Limited (hereinafter referred to as Changshu Hoteba)
Defendant of First Instance: Gan Chuanmeng
Defendant of First Instance: Gan Chuanfei
Defendant of First Instance: Xu Guoliang
The appellant Shanghai Mei steam clothing Co., Ltd (hereinafter referred to as Shanghai Mei steam) for trademark infringement and unfair competition disputes, not satisfied with the Shanghai Second Intermediate People's Court (2002) Shanghai Second Intermediate People's Court Civil No. 5 (Zhi) No. 202, the first word of the civil judgment, the Shanghai Higher People's Court appeal.
The court of first instance found that the plaintiff Bonetree Severn Oller Ltd. is a French company engaged in the design, manufacture and sale of clothing, registered in mainland China, the flower graphics, the traditional Chinese characters "Montjuic", "MONTAGUT" and the combination of flower graphics. Four trademarks are registered in mainland China, including "MONTAGUT", "MONTAGUT" in traditional Chinese characters, "MONTAGUT" in combination with flower graphics, etc., and the goods authorized to be used by the trademarks are clothes, shoes and hats of Class 25. Hong Kong Mei steam by Gan Chuanfei and Gan Chuanmeng set up in Hong Kong, assigned to obtain by "Mei steam" Chinese characters, pinyin letters "Meizheng" and flower petal graphic combination of registered trademarks (hereinafter referred to as "Mei steam"). (hereinafter referred to as the "Mei Steam" trademark). Shanghai Meizheng was established by Gan Chuanmeng in Shanghai, and was authorized by Hong Kong Meizheng to use the trademark "Meizheng" exclusively in mainland China. Changshu Haoteba was established by Xu Guoliang to process and sell garments for Shanghai Mei Steam. The clothing produced by Changshu Hoteba and sold by Shanghai Mei Steam and Changshu Hoteba used the "Montjuic - Mei Steam" logo, and the decoration of the bags was similar to that of the Plaintiff's. In addition, Shanghai Mei Steam used the trademark "Mei Steam" in its specialty stores. In addition, Shanghai Mei steam in its store shelves at intervals marked with traditional Chinese "Meng Tejiao" and "Mei steam" Pinyin letters and petal graphic symbols, in the price tag marked "goods (brand) No." for "Meng Tejiao" and "Mei Steam. On the price tag, it is labeled "goods (brand) number" as "Montjuic". Shanghai Mei steam in the store door, billboards, clothing, bags, Changshu Haoteba in clothing, bags, directly using the Hong Kong Mei steam containing the word "Montjuic" corporate name.
The Shanghai Second Intermediate People's Court held that Shanghai Mei steam, Changshu Haoteba production, sales of tops collar label, lining labeled "Montjuic - Mei Steam" logo, tops of the left chest labeled "Mei Steam" Pinyin letters and petal graphics The color of the "Mei Steam" pinyin letters is the same as the color of the clothing material, and the color of the flower petals is highlighted, and the flower petal graphic lacks only leaves and stems compared to the Plaintiff's "flower graphic", and "Montjuic" is directly used as the trade name on the shelves and price tags, which is sufficient for the Plaintiff to use "Montjuic" as the trade name. The use of "Mengtejiao" as a trade name on the shelves and price tags was misleading and infringed the Plaintiff's exclusive right to use the registered trademark. Shanghai Mei steam in the store door, billboards, clothing, bags, Changshu Haoteba in clothing, bags, directly using the plaintiff's trademark "Meng Tejiao" containing the name of the enterprise, the bag decoration and the plaintiff is also similar, constituting unfair competition. Shanghai Mei steam, Hong Kong Mei steam, Changshu HaoTeBa in the subjective *** with the infringement of intent, should *** with the civil liability for infringement. As Gan Chuanmeng, Gan Chuanfei and Xu Guoliang were the legal representatives of the three defendant companies, the acts they carried out were on behalf of their respective companies, and the consequences of the infringement thus caused should be borne by the companies. According to the facts of the case, the court of first instance ruled that the three defendant companies to stop trademark infringement and unfair competition, joint and several compensation for the plaintiff's economic losses of RMB 500,000 yuan. After the judgment, Shanghai Meijin filed an appeal to the Shanghai Higher People's Court.
The Shanghai Higher People's Court found that the Court of First Instance found that the facts were clear, the applicable law was correct, the trial procedure was lawful and should be upheld, and on July 6, 2004, rejected the appeal and upheld the original verdict.
3. Sunny Records (Hong Kong) Limited v. Suzhou Western Catering & Entertainment Company Limited Copyright Infringement Dispute
Plaintiff: Sunny Records (Hong Kong) Limited (hereinafter referred to as Sunny)
Defendant: Suzhou Western Catering & Entertainment Company Limited (hereinafter referred to as Western Entertainment)
On December 12, 2003, Plaintiff Sunny discovered that Western Entertainment had infringed upon its rights to the music. On December 12, 2003, the plaintiff, Xinli Company, found that Western Entertainment Company, without authorization and for the purpose of profit, had shown the three works (MTV) sung by Leon Lai in the form of karaoke to the public, which were copyrighted by Xinli Company, namely "Two of a Kind", "All Day Love" and "Acid", and then sued Xinli Company for infringing on its lawful rights and interests in the Intermediate People's Court of Suzhou City, Jiangsu Province.
The Suzhou Intermediate People's Court found that: in 2001, Sunny produced and distributed a VCD containing the three MTV works in question, and the back page of the original CD sleeve was marked with the copyright mark of Sunny and registered the copyright with the International Federation of the Phonographic Industry (IFPI) Asia Office. Liu Ying, an agent of the IFPI Beijing Representative Office, to play eight songs sung by Leon Lai on demand at the Western Biao Song City operated by Western Entertainment Company, videotape the playback process, and burn two copies of the CDs. The CDs contained the three MTV works in question. The notary office of Suzhou notarized the above evidence collection process.
The court held that the MTV works involved in this case are to determine the vocal, instrumental works as the carrier of the main body, based on the different characteristics of the music genre and the atmosphere of the situation for the visual creative design, the formation of sound, painting the audio-visual structure, while in the artistic treatment of the use of light, color, composition and other variations of combinations, and through the three-dimensional animation, digital editing, and other technological processing, cohesion of the director, the actors, Photography, editing, lighting and other creative labor, is a combination of audio-visual art formation, in line with the constituent elements of the work, belongs to the copyright law provisions of the method similar to the film creation of the work. Sunny enjoys the copyright of the three MTV works in question. Western Entertainment Company used the works without authorization in its business activities, which infringed on Sunny's property rights of screening and remuneration, and should bear the civil liability of stopping the infringement and compensating for the damages in accordance with the law. Since Western Entertainment Company did not infringe on the personal rights of Xinli Company's writings, the liability of apologizing for damages is no longer applicable. The amount of compensation shall be determined on a discretionary basis according to the type of works involved in the case, the scale and grade of operation of Western Entertainment Company and the time of infringement. For the reasonable costs of litigation and other expenses proposed by Xinli, it should be borne by Western Entertainment Company.
On November 26, 2004, the Suzhou Intermediate People's Court ruled that Western Entertainment should stop infringing the copyright, compensate Xinli for the economic loss of RMB 9,000 and RMB 25,441 for the reasonable costs of the litigation, and rejected Xinli's other claims. After the judgment, both parties did not appeal in accordance with the law, the judgment has become legally effective.
4. Zhejiang Xiaoshan Wuliangye Series Liquor Sales Co., Ltd. and Yibin Wuliangye Co., Ltd. v. Sichuan Laozufang Winery and Ninghai Changsheng Food Co., Ltd. Trademark Infringement and Unfair Competition Dispute
The appellant (plaintiff in the original case): Zhejiang Xiaoshan Wuliangye Series Liquor Sales Co. Ltd. (hereinafter referred to as Yibin Wuliangye)
Appellant (Defendant at First Instance): Sichuan Laosofang Distillery (hereinafter referred to as Laosofang Distillery)
Appellee (Defendant at First Instance): Ninghai Changsheng Foodstuffs Company Limited (hereinafter referred to as Changsheng Company)
Xiaoshan Wuliangye and Yibin Wuliangye v. Laosofang Distillery and Changsheng Company, a case of trademark infringement and Unfair Competition Dispute, as the parties did not accept the civil judgment of Ningbo Intermediate People's Court (2003) Yong Min Er Chu Zi No. 95, filed an appeal to the Higher People's Court of Zhejiang Province.
The court found that Xiaoshan Wuliangye obtained the trademark "Zuofang" in March 2003 and licensed Yibin Wuliangye to use the trademark "Zuofang" exclusively. In December 1999, Yibin Wuliangye Group Co., Ltd. of Sichuan Province obtained a design patent for the packaging box. Established in July 2001, Laozufang Winery produces "Laozufang Jade Brand Laozufang Jade Cellar" wine, in which the word "Laozufang" in "Laozufang Jade Cellar" is much larger than the word "Jade Cellar" in "Laozufang". The word "Laozoufang" in "Laozoufang Jade Cellar" is much larger than the word "Jade Cellar". Since December 2002, Changsheng has been operating three varieties of Laozufang Jade Cellar wine.
The Zhejiang Higher People's Court held that Xiaoshan Wuliangye and Yibin Wuliangye had the exclusive right to use the registered trademark "Zuofang", which should be protected. The use of the word "Laozufang" prominently in the "Laozufang Jade Brand Laozufang Jade Cellar" wine produced by Laozufang Winery is similar to the registered trademark "Zuofang" in its entirety, and is likely to mislead the relevant public as to the source of the trademark. The evidence provided by Yibin Wuliangye did not establish that the "Zuofang" brand Laozufang wine and Zuofang wine were well-known commodities, and that the behavior of Laozufang Winery and Changsheng Company did not constitute an infringement of the unique name, packaging and decoration of well-known commodities. The behavior of Laozufang Distillery and Changsheng Company did not constitute an infringement of the unique name, packaging and decoration of well-known goods; in the case that Xiaoshan Wuliangye and Yibin Wuliangye did not put forward a clear litigation request on patent infringement, it was not necessary to hear the patent infringement dispute; since Xiaoshan Wuliangye has enjoyed the exclusive right to use the registered trademark "Zuofang" only since March 2003, while Laozufang Distillery was established in July 2001, which was earlier than the case of Xiaoshan Wuliangye, it was not necessary to hear the dispute. The amount of compensation is based on the reasonable expenses paid by Xiaoshan Wuliangye and Yibin Wuliangye to stop the infringement.
On August 26, 2004, the Zhejiang Provincial Higher People's Court ruled that: Laozufang Distillery and Changsheng Company should stop infringing the registered trademark "Zuofang"; Laozufang Distillery and Changsheng Company should compensate Xiaoshan Wuliangye and Yibin Wuliangye for the economic loss of RMB 200,000 and RMB 100,000 respectively (including reasonable expenses incurred in stopping the infringement). (including reasonable expenses paid to stop the infringement).
5. Harbin Black Swan Group Co., Ltd. v. Guangdong Black Swan Dietary Culture Co., Ltd. Trademark Infringement and Unfair Competition Dispute
Appellant (Defendant): Guangdong Black Swan Dietary Culture Co.
Appellee (plaintiff): Harbin Black Swan Group Co.
Harbin Black Swan v. Guangdong Black Swan trademark infringement and unfair competition disputes, Guangzhou Intermediate People's Court to (2001) Guangzhou Intermediate Law Knowledge of the initial civil judgment No. 190, Guangdong Black Swan to stop infringing on the exclusive right to use registered trademarks, compensation for damages of 500,000 yuan, and dismissed the plaintiff's unfair competition, and other litigation requests. Guangdong Black Swan Company did not accept the judgment, appealed to the Guangdong Provincial Higher People's Court.
The court found that: Harbin Black Swan Company was assigned in September 2000 to obtain the "Black Swan" trademark combination of text and graphics. In April 2002, Guangdong Black Swan applied to the State Trademark Office to revoke the trademark "Black Swan" of Harbin Black Swan, and the State Trademark Office decided to reject the application. In December 2003, Beijing No.1 Intermediate People's Court made an administrative judgment to maintain the decision of the State Trademark Office. In December 2003, the Beijing No.1 Intermediate People's Court upheld the decision of the State Trademark Office.
The Higher People's Court of Guangdong Province, after hearing the case, held that: although Guangdong Black Swan appealed to the Beijing Municipal Higher People's Court, according to the provisions of the Administrative Litigation Law, the implementation of the specific administrative act will not be stopped during the period of litigation, and that before the State Trademark Office revoked the "Black Swan" trademark, the "Black Swan" registered trademark will be revoked by the State Trademark Office. According to the Regulations for the Implementation of the Trademark Law, a trademark used continuously until July 1, 1993, which is identical or similar to a service mark registered by another person for the same or similar services, may continue to be used, but may not be expanded in terms of geographical area of use and service items. However, Guangdong Black Swan Company has no affiliation with the outsiders who used the trademark "Black Swan" and the name of the store before July 1, 1993, and they belong to different market entities, so the reason that Guangdong Black Swan Company claimed to have the prior right to use the trademark "Black Swan" was not established. Guangdong Black Swan was established in January 1998, after the registration of the trademark "Black Swan", the use of black swan and Harbin black swan company registered trademark similar trademark, its behavior has constituted trademark infringement.
On April 2, 2004, the Higher People's Court of Guangdong Province, according to the law, rejected the appeal and upheld the original verdict.